Real inventors — the tinkerers in garages, the engineers scraping by in startups — they’re the ones getting hammered by the USPTO’s obviousness roulette right now. One day your widget’s patent sails through; the next, it’s obvious to some judge in a bad mood. That’s the chaos of 35 USC §103, built on case law that’s more art than science. But what if the US Patent Office borrowed the EPO’s problem-and-solution approach? Suddenly, predictability. No more guessing if your tweak is inventive. Just follow the steps, solve the problem, done.
Here’s the thing. I’ve covered patent wars for two decades, from the dot-com bubble to today’s AI gold rush, and nothing kills innovation faster than uncertainty. US obviousness? It’s a black box. EPO’s method? A flowchart. For the little guy fighting big corps, this could level the field — or pile on paperwork that buries them.
Breaking Down the EPO’s Secret Sauce
The Europeans nailed this back in the ’80s, crediting some board member named G. Szabo for the blueprint. It’s not hype; it’s drilled into their examiners via Guidelines for Examination G-VII-5:
When assessing inventive step the problem-and-solution approach should be applied, and any deviation from that approach should be exceptional.
Three steps, crystal clear. Pick the closest prior art — that one reference most like yours, needing the least tweaks to match your claim. Then, craft the objective technical problem: what’s the gap, the effect your invention fixes? No hindsight, no inventor bias. Finally, ask: would a skilled person jump to your solution? Boom. Decision.
And it works across tech — software, biotech, widgets. No favorites.
But.
US law’s different beast. Graham factors from 1966: scope of prior art, differences, level of skill, secondary stuff like commercial success. Flexible? Sure. Predictable? Laughable. Examiners cherry-pick cases; appeals drag on.
Why Closest Prior Art Could Wreck Everything
Look, the EPO’s first step sounds simple — one reference, most promising path. But disputes rage over it. Pick the wrong one, and your invention looks obvious. Too right, and it’s non-obvious. Procedural economy, they call it — one and done. USPTO does multiple references, combos galore. Adopting this? Means rewriting examiner training, appeals boards, maybe even statute tweaks.
Here’s my unique take, one you won’t find in the original piece: this smells like the 2006 KSR v. Teleflex rerun. Remember? Supreme Court loosened obviousness, killed “teaching away” and rigid TSM tests. Patents plummeted. EPO-style structure might tighten it back up — predictably rejecting more. Big Tech cheers (fewer troll suits); startups weep (harder to protect niches). History says: predictability sounds good, but US loves flexibility for its inventor mythos.
Objective problem? Tricky. Distill differences, effects, reformulate sans solution hints. “Gearing down” to lesser effects — clever dodge for flexibility. But subjective whiff lingers. US examiners already sniff for “teaching suggestions”; this formalizes it, maybe curbing hindsight bias. Or not.
Could the USPTO Pull This Off?
Technically? Yeah. Guidelines are soft law; USPTO tweaks MPEP anytime. Train 8,000 examiners on three steps — not rocket science. International harmony bonus: PCT apps smoother.
Should they? Cynic says no. Who’s making money? Patent attorneys billing endless amendments under status quo. Big Pharma, pushing blockbusters, thrives on broad claims. EPO method boxes you in — alternative to prior art? Fine, but no wild leaps.
And software patents? US post-Alice limbo; EPO’s technical problem filter might clarify or crush.
But for real people — that solo inventor with a breakthrough battery tweak — structure beats whim. Fewer Office Actions. Faster grants. Cheaper fights.
Is the Problem-and-Solution Approach Better Than Graham?
Short answer: in theory, yes. Objective, repeatable. Graham’s factual, but mushy. EPO eliminates ex post facto by design; US fights it per case.
Data? EPO grant rate ~50%; USPTO ~55%, but appeals differ. EPO’s predictability cuts litigation — music to inventors’ ears.
Yet US Constitution demands “useful Arts” promotion. Fuzzy obviousness lets more through, fueling risk-taking. EPO’s rigor? Might stifle.
Prediction: If AI patents explode, USPTO adopts piecemeal — software first. Full switch? Political poison. Congress meddles.
Examiners hate change. “We’ve always done Graham.” PR spin: “Harmonization!” Reality: budget fights, union pushback.
Why Does Obviousness Reform Matter for Inventors?
Your patent’s lifeblood. Obvious? Dead. Non? Monopoly. Chaos now means VCs balk at hardware startups — too risky. EPO clone could greenlight more moonshots, confidently.
But who pays? Filings up, quality up, trolls down? Or bureaucracy bloat?
I’ve seen Valley hype crash. Remember blockchain patents? Obviousness tsunami. Structure might prevent that.
Bottom line: Adopt selectively. Test in biotech. Measure grants, suits. Don’t swallow whole.
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🧬 Related Insights
- Read more: Professors Slam PTAB’s ODP Twist in Baurin — Citing Overlooked CAFC Wins
- Read more: EU’s GPAI Code of Practice: Self-Regulation Theater or Actual AI Leash?
Frequently Asked Questions**
What is the EPO problem-and-solution approach?
It’s a three-step test for inventive step: closest prior art, objective technical problem, obviousness to skilled person. Objective, no hindsight.
Could USPTO adopt EPO obviousness method?
Yes, via MPEP updates. But training, culture clash big hurdles.
Should US switch to problem-and-solution for patents?
Maybe for predictability, but risks over-rejection. Test first.
